HC Deb 16 February 1852 vol 119 cc597-605

Order for Second Reading read.


said, this was an important Bill, and one to which he believed the highest authority in the Court of Chancery could have no objection, because it conferred upon him additional, and, as some might think, too much power. It was proposed by this Bill to abolish all fees—a proposal in which he (Sir H. Willoughby) entirely concurred; but then it was also proposed that the money which was to be paid in lieu of fees should be raised by stamps to be issued with the sanction of the Lord Chancellor. Now he wished to ask whether this power of the Lord Chancellor to issue stamps was to be limited, and, if so, to what amount? for in this case the House would remember that they were parting with the important power of taxing Her Majesty's subjects through the Stamp Office. There was another point on which he wished for some information. One class of officers in the Chancery Court was to be paid from this fund arising out of fees and stamps, while another class was to be paid out of the Consolidated Fund. Now he thought that a great advantage would arise from having all the officers paid out of one fund, and then they would know exactly what was the cost of the Court of Chancery.


said, the system intended to be introduced by the present measure was exactly that which the hon. Baronet wished, namely, to substitute a simple measure instead of one of great complication. By the existing system there were 90 different officers, who received 330,000 different payments, and the amount of these payments was between 112,000l. and 113,000l. a year. Now it was proposed to abolish this system, and to pay the fees by means of stamps. The hon. Baronet asked whether the number of those stamps would be limited. Now, there would not be the least difficulty in fixing a general maximum—say the present sum of 113,000l.—but that there was some little difficulty in fixing the precise point of the cause at which the payments should be made. It was most desirable to concentrate all the different payments upon some epoch in the cause, but the exact moment could only be finally fixed by experiment, and therefore the power to which the hon. Baronet had referred was given to the Lord Chancellor. Then the hon. Baronet had complained that one class of officers was to be paid from the fee fund, and another from the Consolidated Fund. Now, he had no doubt that the suitors in the Court of Chancery would be very well pleased to have the whole expense of the Court thrown upon the Consolidated Fund; but he did not think that it would be right to do so, for reasons which he explained on introducing the Bill. As he then stated, that portion of money which was paid for obtaining a decision on conflicting rights ought to be paid by the Government; and accordingly the Judges who were appointed to decide conflicting rights were paid by the country. But there was another branch of the proceedings of the Court which was purely administrative, where parties thought proper to make the Court of Chancery the trustee for their property, as offering a greater security for the protection of their infant wards. Now, he did not think it was at all improper that parties who made the Court of Chancery their bankers or their trustees should make some contribution to the fund, and therefore it was proposed by the Committee, of which he thought the hon. Baronet himself was a Member, that a small tax should be placed upon them. But this would not apply to proceedings in lunacy. At the same time hoped the period was not distant when, by the further reductions that were contemplated, suitors would be relieved from fees nearly altogether.


Sir, I do not rise to oppose the second reading of this Bill: on the contrary, having in former Sessions complained of the delay which has taken place in giving effect to the recommendations of the two Reports of the Select Committee on which this measure is founded, I have now great pleasure in expressing my satisfaction at this Bill being introduced. This is not the moment to go into the details of the Bill. I think that in general the details are satisfactory, and such as are calculated to carry into effect the recommendations of the Committee—though there are certain points on which their recommendations have not been adopted; and when this measure is in Committee it will be my duty to call attention to some of those particular points. But at present I rise to ask a question of my hon. and learned Friend the Solicitor General with respect to a matter that is germane to the subject of this Bill. The House will recollect that on the 27th of last June the House agreed to a unanimous Address to Her Majesty, praying that to the Members composing the Chancery Commission, two Gentlemen not of the legal profession might be added: —"and also praying that Her Majesty would be graciously pleased to cause instructions to be given to the said Commissioners to direct their immediate attention to the course of business before the Masters in Ordinary of the said Court, so as to report as speedily as may be their opinion as to the proper steps for regulating the business in those offices in such manner as to diminish the delay and expense to the suitors. Her Majesty, in answer to that Address, was graciously pleased to nominate the hon. Member for the county of Oxford (Mr. Henley) and myself as the lay Members of that Commission. During the recess that Commission, in obedience to the wish expressed by this House, directed its patient and earnest attention, not only to the mode of administration of justice in the courts of equity, but more especially to that portion of the subject to which this House had particularly wished their attention to be directed. That Commission, I need hardly remind the House, was composed of very eminent persons—the Master of the Rolls, two Vice-Chancellors, three leaders of the Chancery Bar, Mr. Bethell, Mr. James, and my hon. and learned Friend the Solicitor General; and my hon. and learned Friend—who, though last, was not the least distinguished among them—Mr. Justice Crompton; to these were added, as lay Members, my hon. Friend (Mr. Henley), and myself. It may appear at first sight that the materials of which this Commission was composed were of a somewhat heterogenous nature; but I can truly say that we acted together in this inquiry with the most perfect harmony, and we had the satisfaction of presenting to Her Majesty a Report which was adopted unanimously, and signed by all of us. Now what was our recommendation in respect to that special point to which the House of Commons directed our attention? We reported as our opinion that no addition to the existing Masters in Chancery ought to be made. We farther reported our opinion that the Masters now employed should occupy their time exclusively in winding up the business now before them; that henceforth the Judges in chambers, with certain appliances, should perform all the functions now discharged by the Masters in Chancery; and we decidedly and unanimously recommended that the other duties of the Masters should no longer be performed by the Masters but by the Judges themselves. Nothing could be more satisfactory to me, and I can answer for my colleagues, than that passage in Her Majesty's Speech relating to the proceedings of the Commission, in which Her Majesty informed the Parliament that She had directed Bills to be prepared in conformity with the recommendations of the Commission. I was more than delighted—I was surprised at the speed with which my hon. and learned Friend the Solicitor General hastened, on the very first day of the Session, to give notice of his intention to introduce a Bill founded on our Report. I am aware that there are circumstances which may have led to some delay on this subject, and I would not have risen to address the House on the question but for the surprise with which I heard that in another place the Lord Chancellor, the head of the law, has expressed doubts as to whether a certain portion of the Report ought to be adopted. I, for one—and I believe I speak the opinion of others—hold that the recommendation as to the Masters' Office is the very keystone of our Report. If this be not followed out, I believe all our recommendations will fail. If this be adopted, I have a sanguine hope that an important benefit will be given to the people of this country with regard to the administration of justice. I rise, therefore, for the special purpose of putting a question to my hon. and learned Friend (the Solicitor General), and of asking him whether we are really to understand that Her Majesty's statement that such a Bill is to be introduced, must be taken with the reservation that the Lord Chancellor has not yet made up his mind whether or not this portion of our recommendations be worthy of the sanction of Her Majesty's Government? I do not deny that something may depend upon the details, though our Report is very elaborate, and goes fully into details upon this subject; and therefore I am quite sure that if there be a will there will be no difficulty in the way of bringing in a Bill to give effect to our recommendations. But the question of what shall be the retiring allowance to the Masters—the question whether they shall retire upon their full salaries, or only upon a portion of them—the question whether they shall be employed in the execution of other duties—these are questions beyond the scope of the Commission; they must be dealt with by Her Majesty's Government and by Parliament; and I, for one, am of opinion that any hardship cast upon individuals when carrying great legal reforms into effect, is a direct obstacle to all future legal reforms; and I would, therefore, be the last to see those gentlemen treated with any hardship when the public good is the object in view. That is my opinion and the opinion of my Brethren on the Commission; but if there be any doubt or hesitation in carrying into execution the recommendation of the Commission on this point, which is its main substance, it will give rise to disappointment, which I believe will only issue in absolute despair.


said, he was glad to have the opportunity of stating how completely, as it appeared to him, the observations made by a noble and learned Lord elsewhere (the Lord Chancellor), and to which reference had been made by the right hon. Gentleman the Member for Ripon, had been misunderstood. Unquestionably that noble and learned Lord was placed in a very unusual position in being interrogated on a number of questions of detail with reference to measures which were not only not then under discussion in the place where the questions were put, but which had not then been even introduced before either branch of the Legis- lature for its consideration. He believed it was not usual for those questions to be put at a time when a measure was actually in preparation embodying the views of the person who was questioned, and when there would be ample opportunity of ascertaining what those views were on the introduction of the measure; but at the same time he was bound to say that if any impression had gone abroad from any statement that was made by that noble and learned Lord either that there had been any delay on the part of the Government in giving instructions for the preparation of a Bill, carrying into effect the recommendations of the Commissioners, or any hesitation, doubt, or difficulty in bringing forward that Bill, beyond the mere ordinary difficulty which always attended the placing in precise legal language resolutions that been had come to, and which were not yet put into precise form—that impression was most erroneous. All he believed that the noble and learned Lord intended to state was this—that whereas he was asked whether he had finally and conclusively made up his mind with reference to certain parts of the Report, the whole of which Report was to be carried into effect by an Act of Parliament, and the clauses of that Act—he in answer had to say that it was extremely inconvenient to be asked whether he had made up his mind as to the Act of Parliament before it was brought before the Legislature, and that he declined to say he had made up his mind, one way or the other, as to the various provisions of the Bill until it was before Parliament for consideration. Further, with reference to that noble and learned Lord, he begged to say that the noble and learned Lord did prepare the present Bill now before the House with the Report of the House of Commons before him, and with the most anxious wish to carry every detail of their resolutions into execution as far as he thought reasonable; and he (the Solicitor General) believed that in almost all points the noble and learned Lord had done so, and that the noble and learned Lord was prepared to take the same course with respect to the recommendations of the Commission to which the right hon. Gentleman had referred. The Report of the Commission had been placed in the hands of the noble and learned Lord only four or five days before the meeting of Parliament; but he (the Solicitor General) had been allowed by the Commissioners, at the request of the noble and learned Lord, to communicate to him some of the main features of that Report before it was formally and finally signed; and, so great was the anxiety of the noble and learned Lord not to take any step that would interfere with the recommendations of the Commissioners, that on a vacancy occurring in the office of Master in Chancery, he specially requested him (the Solicitor General) to attend his Lordship in order that he might inquire before he made any communication to the noble Lord the Prime Minister on the subject of filling up the office, whether by so doing he should in any way interfere with the views entertained by the Commissioners as to the office of Master in Chancery; and although he (the Solicitor General) was not authorised at that period to communicate to his Lordship the definite conclusions of the Commissioners, inasmuch as at that period that point was not finally determined, still, on his informing his Lordship that the question was under the consideration of the Commissioners, his Lordship said that if that were so, he would not take any step that would interfere with their recommendation. As soon, however, as his Lordship was in possession of the recommendations of the Commission, he immediately did that which was noticed in the Speech from the Throne—gave instructions to have a Bill prepared to carry into effect the recommendations of the Commission; and he gave those instructions to the very able gentleman who had served the Commissioners as Secretary, and who was most distinguished both as a conveyancer and an equity draughtsman, and he gave, in his letter to that gentleman, the reason why he had requested him to prepare the Bill, namely, that, being in possession of the views of the Commissioners, he could prepare it with greater expedition, and also with more attention to the minuter details that might have been discussed by the Commissioners, although they were not embodied in the Report. Hon. Members, in fairness, must admit that very often, however mature their deliberations, and how much so-ever they might have considered a subject, when they came to frame a Bill founded upon it, that proved itself to be the real test by which to ascertain the exact value of every detail of their conclusions, and the necessity of any modification, not of principle, but of such details. He believed the remark of the noble and learned Lord to have applied to that—namely, that, un- til he saw the Bill in its actual shape, he could not say how far he did or did not approve of the special clauses of the measure, which was then really only in a state of preparation; but that that measure, when prepared, would fully and effectually carry out the substantial recommendations of the Commissioners, including that to which the right hon. Gentleman had referred. Of that he entertained no manner of doubt whatever. He himself did give notice—or, rather, notice was given on his behalf, as he himself was not present—for the introduction of that Bill at an early period; and he was in hopes—although he scarcely expected it could have been prepared for the day for which he had given notice—that it might have been ready on Thursday week. He could not say positively that it would be ready by that day, but he could say there would be no delay in the preparation of the Bill—that it was in the hands of the gentleman most competent to prepare it, and nothing but his want of leisure would prevent its being prepared immediately, and when prepared, it would be a Bill to carry into effect in their integrity the recommendations of the Commissioners.


had heard with great pleasure the statement of his hon. and learned Friend the Solicitor General, if he rightly understood the observations he had addressed to the House; because, viewing his hon. and learned Friend as a fair and proper exponent of the mind of the Lord Chancellor in that House, if he (Mr. Henley) rightly caught his meaning, it was this, that the supposed or presumed doubt of the Lord Chancellor in another place had reference not to the subject-matter of the report, or that particular and important part of it to which the light hon. Gentleman had referred, but to the details of the measure which might be prepared to carry out that subject-matter. He trusted he had rightly understood his hon. and learned Friend, because, if it were so, it did to a great degree relieve his mind, and he thought it would relieve the minds of other persons, of the fear they might have entertained of the Government not sanctioning the carrying out that part of the recommendations of the Commissioners. After the announcement made in the early part of the Queen's Speech as to the intention of the Government, followed up by the statement of the Prime Minister as to the introduction of this Bill, it was not surprising that that feeling should have been somewhat damped by the misunderstanding which he was glad to hear now had existed in the public mind as to the doubt the Lord Chancellor was supposed to have had on that part of the Report.


said, the right hon. Gentleman who had just addressed the House had understood with perfect correctness the statement made by his hon. and learned Friend the Solicitor General. The Report had been presented only a few days before the meeting of Parliament: it was immediately brought under the consideration of the Government, and a passage was introduced in the Queen's Speech relating to the measure to be founded on that Report; and his noble Friend at the head of the Government thought that the most distinct and authoritative manner in which the intention of the Government could be expressed would be by giving notice of an early day for the introduction of a Bill founded on that Report. He could not sit down, however, without stating that from all he had heard, the legal part of the Commission had derived the greatest possible benefit from the cordial assistance they had received from the association of the right hon. Gentleman the Member for Ripon (Sir James Graham), and the hon. Member for Oxfordshire (Mr. Henley); and the Report, which was unanimously agreed to by the Commission, was one for which the public must feel deeply indebted to them.

Bill read 2°.